This paper was presented at the Association for Education in Journalism and
Mass Communication in San Antonio, Texas August 2005.
If you have questions about this paper, please contact the author
directly. If you have questions about the archives, email
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(Feb 2006)
Thank you.
Elliott Parker
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DIVISION CORRECTION
====================================================================
"Son of Sam" Goes Incognito:
Emerging Trends in Criminal Anti-Profit Statutes
Christina M. Locke
M.A./J.D. Candidate
(Student Paper)
University of Florida
College of Journalism and Communications
Gainesville, Florida
304 Northwest 19th Avenue
Gainesville, Florida 32609
Phone: (863) 610-0607
E-mail: [log in to unmask]
Law Division
AEJMC National Convention
San Antonio, Texas
August 10-13, 2005
Emerging Trends in Criminal Anti-Profit Statutes
5
Emerging Trends in Criminal Anti-Profit Statutes
5
"Son of Sam" Goes Incognito:
Emerging Trends in Criminal Anti-Profit Statutes
Abstract
Laws preventing criminals from profiting from crimes, especially by
telling their stories, exist in most states. Twenty-eight states
have laws similar to the original "Son of Sam" law declared
unconstitutional in 1991. However, a growing number of states have
eliminated references to expressive materials from their anti-profit
statutes. Analysis of procedural provisions of the laws reveals that
the goals of preventing criminal profiteering and compensating
victims are thwarted by the way the laws are administered.
Emerging Trends in Criminal Anti-Profit Statutes
5
"Son of Sam" Goes Incognito: Emerging Trends in Criminal Anti-Profit Statutes
When the time came for serial killer David Berkowitz, AKA "Son of
Sam," to tell the story of how he shot and killed several people in
New York City during 1976 and 1977, he chose to collaborate with
forensic psychiatrist David Abrahamsen. However, proceeds from the
book Confessions of Son of Sam were apparently not a concern of
Berkowitz. "I feel that by helping you it will also be helping
society. I want no financial rewards for my cooperation," Berkowitz
wrote in June 1979, nearly two years after his arrest.[1] Berkowitz
later agreed to donate 25 percent of any book royalties to the
victims of his crimes.[2]
Despite Berkowitz's self-professed altruism, his killing spree led
to a new breed of laws that prevent murderers like himself and other
criminals from benefiting financially from telling their
stories. The media attention surrounding his crimes provoked the New
York legislature to enact a law that called for the forfeiture of
proceeds due to criminals from books, movies and other mediums in
which they depicted crimes. Proof of Berkowitz's influence on the
laws is found in the fact that these laws to prevent criminal
profiteering, in effect in 39 states,[3] are commonly referred to as
"Son of Sam" laws. Most "Son of Sam" laws are modeled after the New
York statute.[4]
Although he was the namesake for the laws, the statute never applied
to Berkowitz. The original statute only applied to convicted
criminals, not those declared incompetent to stand trial, as Berkowitz was.[5]
Despite their goals of compensating crime victims and preventing
criminals from profiting from their crimes, "Son of Sam" laws like
the one New York enacted in 1977 have not been embraced by the
courts. In 1991, the New York statute was struck down by the U.S.
Supreme Court in Simon & Schuster v. New York State Crime Victims
Board. The Court held that the law did not pass the strict scrutiny
required for content-based restrictions to be valid and was therefore
inconsistent with the First Amendment.
The result of Simon & Schuster has been a state statutory
landscape of "Son of Sam" laws that is increasingly diverse, and is
likely to continue changing as states receive more challenges to
their anti-profit laws. This paper diverges from the traditional
approach to "Son of Sam" laws in that it does not focus solely on
constitutional analysis, but instead examines every anti-profit
statute in the nation. Part I reviews the Supreme Court's decision
in Simon & Schuster. Part II presents the general trends and
theories in legal literature regarding "Son of Sam" laws. Part III
examines "Son of Sam" laws across the nation according to the degree
they target specific mediums of expression. Relevant case law is
used to illustrate the various incarnations of "Son of Sam" laws. In
Part IV, the general statutory provisions for administering the laws
are analyzed. After a summary of the research findings, this paper
concludes that the majority of "Son of Sam" laws are
unconstitutional, though a new trend in anti-profit statutes may
offer a way for states to compensate victims and prevent criminal
profiteering in a way that can withstand constitutional
scrutiny. Additionally, analysis of the procedural aspects of the
laws reveals that the compelling government interests advanced by
"Son of Sam" laws -- compensating victims and preventing criminal
profiteering -- are undermined by statutory provisions that allow the
laws to function as a statutory scheme to offset state costs in
prosecuting, defending and imprisoning criminals.
I. SIMON & Schuster v. New York state crime victims board
It was a serial killer who prompted the enactment of New York's
criminal anti-profit statute, but a mobster was at the center of the
case that led to the statute's downfall. Publishing company Simon &
Schuster initiated the action in 1987, challenging the New York State
Crime Victims Board's claim to book royalties earned by gangster
Henry Hill.[6] Hill and author Nicholas Pileggi collaborated to
produce a book entitled Wiseguy: Life in a Mafia Family, which
recounted Hill's criminal career involving theft, robbery, extortion
and drug trafficking.[7]
The board invoked the New York law, which allowed the board to hold
in escrow the profits from a person accused or convicted of a crime
who tells his or her story.[8] Simon & Schuster challenged the
statute on the assertion that it violated the First
Amendment.[9] The board argued that the law was not enacted with any
illicit intent to suppress the exchange of ideas and that victim
compensation, not prohibition of offensive speech, was the intended
result of the law.[10] Both the Southern District Court of New York
and the Second Circuit Court of Appeals sided with the board, finding
the statute to be consistent with the First Amendment.[11]
The Supreme Court, however, reversed the lower courts' rulings and
held that New York's "Son of Sam" law was overbroad and not
consistent with the First Amendment. The Court first deemed the New
York statute a content-based restriction because it "singled out
speech on a particular subject for a financial burden that it places
on no other speech and no other income."[12] The Court next applied
strict scrutiny to the New York statute, concluding that although the
state had compelling interests to compensate victims and prevent
criminals from profiting from their crimes, the New York law was not
narrowly tailored to meet that interest.[13] The law encompassed
works on any subject in which crimes were mentioned only in a cursory
fashion.[14] Additionally, the statute's broad definition of a
"person convicted of a crime" included "any person who has
voluntarily and intelligently admitted the commission of a crime for
which such person is not prosecuted" and extended the law's
application to authors of expressive material who were never
convicted or even accused of crimes.[15] The Court pointed out that
under the New York "Son of Sam" law, potential proceeds from works
valuable to society such as The Autobiography of Malcolm X and the
Confessions of St. Augustine would be subject to seizure, even though
the books are not primarily about criminal wrongdoing.[16]
II. Scholarly Approaches to "Son of Sam"
In Simon & Schuster, the Supreme Court deemed the New York Law a
content-based restriction on speech.[17] When applying strict
scrutiny to the law, the Court found that the state did have
compelling interests in compensating crime victims and ensuring that
criminals do not profit from their crimes.[18] However, the state
did not narrowly tailor the law to achieve these interests because
the statute was overbroad. The Court's determination that New York's
"Son of Sam" law was content-based and its use of strict scrutiny
have dominated the commentary regarding "Son of Sam" laws. Many of
these scholarly articles have focused on the O'Brien test for
content-neutral statutes.[19] The O'Brien test offers an
intermediate scrutiny standard for analyzing content-neutral
regulations: the regulation must further a substantial government
interest in a way that only incidentally limits First Amendment
freedoms.[20] A student-written law review article[21] cited by the
Court in Simon & Schuster argues that the Southern District of New
York's decision[22] to scrutinize New York's "Son of Sam" law using
the O'Brien test was the appropriate one. The article argues that
the law restricts the proceeds of the speech, not the speech itself,
and that any limits on the speech are incidental.[23] Other legal
commentaries utilize the O'Brien test as a standard in formulating
model laws that would achieve the same goals of compensating victims
and preventing criminal profit but would be constructed in a way that
intermediate scrutiny would apply.[24]
A 1994 study of crime victim statutes looked at "Son of Sam" laws
throughout the nation.[25] Author Debra Shields first reviews the
legislative history of New York's original "Son of Sam" law and then
discusses the Simon & Schuster decision. Next, general procedural
provisions of the statutes are presented. The statutes across the
country are addressed according to their definitions of a criminal
defendant and to the degree they single out mediums of
speech. Shields concludes that 41 out of the 45 current "crime
victimization statutes" are unconstitutional under Simon & Schuster.[26]
In some ways, this paper serves to update the statutory landscape
presented by Shields, which was based primarily on statutes from 1992
and 1993.[27] Using statutes from 2004 and legal challenges against
"Son of Sam" laws in the past decade, this paper offers a current
overview of criminal anti-profit laws in the United States. It also
illustrates the path that some of the 41 states Shields referred to
have taken to ensure that their "Son of Sam" laws will be
effective. Additionally, this paper analyzes the statutory
provisions for administering "Son of Sam" laws, contributing to a
greater understanding of how the administration of crime
victimization statutes can negate the intent of the laws.
III. Categories of "Son of Sam" Laws
In this section, criminal anti-profit statutes across the country
are organized by the author into three major categories, according to
the degree they target specific mediums of expression. Laws that
achieve the goals of preventing criminals from profiting from their
crimes fall into one of three categories: expression-specific laws;
unique knowledge laws; and general anti-profit
statutes.[28] Relevant case law will also be presented within each
category of statutes.
A. Expression-Specific "Son of Sam" Laws
The majority of "Son of Sam" laws currently in effect are closely
modeled after the original New York law. Twenty-eight states[29]
have laws that allow seizure of proceeds from "the reenactment of
such crime, by way of a movie, book, magazine article, tape
recording, phonograph record, radio or television presentation, live
entertainment of any kind, or from the expression of such accused or
convicted person's thoughts, feelings, opinions or emotions regarding
such crime" or wording very similar to this.[30] Arizona, for
example, has added "internet or online presentation or
depiction."[31] Montana includes "play" as a medium.[32] Virginia
is the only state to include the newspaper as a medium of expression
subject to the law.[33]
One aspect of the original New York law criticized by the Supreme
Court in Simon & Schuster was that the statute applied to works on
any subject that included a reenactment or thoughts about a crime,
even if only incidental.[34] In response to this weakness of the
law, five states are more specific about what books, movies, etc. are
subject to anti-profit statutes.[35] In these states, expression
concerning the crime must comprise a substantial portion of the
entire work. Delaware, for example, uses the phrase "primary
contents of the work.[36] In Oklahoma and Virginia, a work is
subject to the law only if an "integral portion" of it refers to the crime.
The 28 states that specifically target expression are the most
vulnerable to constitutional challenges to their laws. Simon &
Schuster paved the way for declaring these types of laws
unconstitutional, and state courts have reached similar conclusions
to the Simon & Schuster court when addressing challenges to these laws.[37]
Keenan v. Sinatra
In 2002, California's version of the "Son of Sam" law, which
targeted expressive materials, was struck down in Keenan v. Sinatra
by the California Supreme Court.[38] In 1963, Barry Keenan, acting
with accomplices, kidnapped singer Frank Sinatra's 19-year-old son
from a Nevada hotel room.[39] Keenan and his two accomplices were
later apprehended, tried and convicted for the kidnapping.[40] In
January 1998, Keenan was interviewed by a writer for the Los Angeles
tabloid New Times for an article titled "Snatching
Sinatra."[41] Subsequent reports indicated that Columbia Pictures
had purchased the movie rights to Keenan's story.[42] Frank Sinatra
Jr. commenced action against Keenan under California's "Son of Sam"
law for any storytelling proceeds.[43]
The California statute was very similar to the New York law examined
by the Simon & Schuster court. It targeted proceeds from expressive
materials "based on the story of a felony for which a convicted felon
was convicted."[44] Sinatra argued that the California law avoided
the overinclusiveness of the New York law by 1) only applying the law
to persons actually convicted of a felony and, 2) expressive
materials that include only a "passing mention of the felony, as in a
footnote or bibliography," are exempt from the law.[45] Keenan
argued that despite these diversions from the New York law,
California's anti-profit statute was still overinclusive and did not
meet strict scrutiny.[46]
The California Supreme Court held that the statute was facially
invalid under the First Amendment. It reasoned that although the
California law was limited to convicted felons, such convicted felons
might still have valuable stories to tell in a way not directly
connected to exploiting the crime.[47] The court mentioned works
that could warn about the consequences of crime, evaluate the
criminal justice system, and describe conditions of prison
life.[48] The court also stated that the exemptions for passing
references to crime still included "within its ambit a wide range of
protected speech, discourages the discussion of crime in no
exploitative contexts, and does so by means not narrowly focused on
recouping profits from the fruits of crime."[49] California's "Son
of Sam" law would effect those same works mentioned in the Simon &
Schuster opinion, such as The Autobiography of Malcolm
X.[50] Therefore, the California Supreme Court overruled lower
courts' ruling that the law did not infringe on the First Amendment,
and the law was struck down. In response, the California Legislature
enacted "Son of Sam II," which extended the statute of limitations
for victims to bring suits for damages against defendants convicted
of serious felonies to 10 years after conviction.[51]
Seres v. Lerner
Another "Son of Sam" law targeting expressive materials that failed
to meet strict scrutiny in recent years was that of Nevada. In late
2004, the Nevada Supreme Court declared that state's "Son of Sam" law
unconstitutional under Simon & Schuster.[52] In Seres v. Lerner,
Donna Seres sued Jimmy Lerner under Nevada's "Son of Sam" statute to
recover proceeds from a book he wrote.[53] Lerner was convicted in
1998 of manslaughter in connection with the death of Mark Slavin,
Seres' brother. Lerner later published a book, You Got Nothing
Coming, Notes from a Prison Fish, in 1999. The Nevada "Son of Sam"
law allowed a felony victim to recover from the felon any proceeds
generated from published materials based on or substantially related
to the offense. Actions brought forth to claim publication proceeds
under the Nevada statute received an extension of the statute of
limitations (five years) for wrongful death suits. Seres brought the
action after the five-year period expired.[54]
The Nevada Supreme Court determined the statute to be content-based
because it allows for the filing claims against publication proceeds
after the statute of limitations has expired for other tort actions,
exclusively applying to income derived from speech.[55] The court
recognized that Nevada had compelling interests in compensating
victims of crimes and preventing criminal profiteering, but the
Nevada law was not narrowly tailored to meet those
interests.[56] The Seres court found the law overbroad because it
allowed for recovery of proceeds from works "substantially" related
to the felony.[57] Lerner's book is only partially related to the
homicide and is mostly about life in prison and religious
experiences.[58] Additionally, Nevada's "Son of Sam" law was
constitutionally overinclusive because the statute did not require
conviction for the statute to apply.[59] The court reasoned that the
definition of "person who committed the felony" could be construed to
include individuals never accused or even convicted of
felonies.[60] The court held that the Nevada law suffered from some
of the same defects the New York "Son of Sam" law did when it was
struck down in Simon & Schuster.
B. Unique Knowledge "Son of Sam" Laws
In response to the negative judicial treatment of "Son of Sam" laws
that target specific mediums of expression and the thoughts and
feelings of criminal defendants, several states have revised their
laws to eliminate such references. Instead, these 11 states target
profits obtained as a result of committing a crime.[61] These new
"Son of Sam" laws seek to recover "assets obtained through the use of
unique knowledge obtained during commission of or in preparation for
crime." This phrase is used in eight states.[62] Iowa uses the
phrase "fruits of the crime" in its statute.[63] Oregon describes
the profits subject to forfeiture as those that were gained as a
result of the crime.[64] In Rhode Island, criminals who commercially
exploit their crimes are required to turn proceeds over to the state.[65]
The advantage of laws that do not contain specific references to
expression is that because they lack such references, they are more
likely to be reviewed using intermediate scrutiny. This less
demanding standard of review increases the possibility that these
"Son of Sam" laws will be considered valid under the First Amendment.
Sandusky v. McCummings
There is little case law involving these increasingly popular[66]
"unique knowledge" laws. In New York, there have been two major
challenges to that state's law, but neither directly addressed First
Amendment issues. The first, Sandusky v. McCummings, did not involve
proceeds from a book, movie or other type of expression, but a
settlement awarded to a convicted criminal who was shot and paralyzed
while mugging an elderly man.[67] In 1984, Bernard McCummings was
shot twice in the back by a New York Transit Authority officer who
observed McCummings beating and strangling a 72-year-old man in a
subway station.[68] McCummings was subsequently awarded a $4.3
million verdict against the Transit Authority for the officer's negligence.[69]
Sandusky invoked New York's revised "Son of Sam" law when he sought
compensation for personal injuries against his assailant,
McCummings. The New York law allows for victims to bring action for
damages against "income generated as a result of having committed the
crime, including any assets obtained through the use of unique
knowledge obtained during the commission of, or in preparation for
the commission of, the crime."[70] The central question for the New
York trial court when it addressed the case in 1995 was whether or
not the $4.3 million verdict constituted "income generated as a
result of having committed the crime."[71]
The court held that the verdict did not fall under the assets
outlined in the New York "Son of Sam" law.[72] It reasoned that the
shooting was "an intervening event that broke any causal connection
with the crime itself."[73] It stated that to apply the "Son of Sam"
law to the case would distort the legislative intent of the law.[74]
New York State Crime Victims Board v. T.J.M. Productions
The other pertinent case to this class of "unique knowledge" laws
also occurred in New York, and like Sandusky v. McCummings, did not
directly address any First Amendment issues. In New York State Crime
Victims Board v. T.J.M. Productions, a New York appellate court held
that the New York State Crime Victims Board on its own did not have
statutory authority to seek publication proceeds from a convicted
felon.[75] The board had sought proceeds paid to mobster Salvatore
"Sammy the Bull" Gravano for the book Underboss.[76] Gravano, a
former member of the Gambino crime family, had been convicted of
violating the federal racketeering act.[77] The board sued T.J.M.
Productions, a company created by Underboss author Peter Maas, Maas
individually, and other entities associated with the book.[78]
The court dismissed the board's claim because New York's "Son of
Sam" law gave the "right to bring a civil action to recover monies
identified as the profits from the crime" to victims or the board on
behalf of victims, not the board alone.[79] The board had brought
the action itself and not on behalf of victims, and therefore had
exceeded its statutory authority.[80] Additionally, the
court relied on a lower court's finding that New York's "Son of Sam"
law did not apply to Gravano. Gravano was convicted in federal
court, and the New York law was limited to defendants convicted of
felonies defined by New York.[81]
In its opinion, the court did allude to the unresolved
constitutional issue of whether publication proceeds truly
represents profits of the crime, but stated that the "significant
constitutional question" was raised in action that the board had no
authority to bring.[82]
C. Broader Anti-Profit Remedies
Finally, there is one state that does not target expression or even
proceeds resulting from unique knowledge. Tennessee has a victim
compensation statute that is procedurally similar to the other laws
presented in this section but instead allows the attorney general to
"collect all income, from whatever source derived, which is owing to
the defendant, or representative or assignee of the defendant, after
the date of the crime."[83] Though Tennessee has the broadest "Son
of Sam" law, the pertinent case law comes from states that have
general forfeiture statutes to supplement their "Son of Sam" laws.
Although Arizona has a "Son of Sam" law modeled after the original
New York law, it chose to pursue book proceeds from a well-known
mobster under a general forfeiture statute. In fact, the state of
Arizona was able to accomplish what New York couldn't: seizing
proceeds from Salvatore Gravano's book Underboss.
Arizona v. Gravano
A few weeks before a New York appellate court in Board v. T.J.M.
Productions dismissed the New York State Crime Victims Board's claim
against Gravano's royalties from Underboss, Gravano was arrested in
Arizona on charges of distributing the drug Ecstasy.[84] Two months
after his arrest, the State of Arizona sought to forfeit money and
property owned by Gravano as proceeds of his Esctasy distribution
ring, which they alleged was conducted through racketeering.[85] The
state asserted that under the Arizona Racketeering Act and the
Arizona Forfeiture Reform Act, royalties from Underboss were also
subject to forfeiture.[86] The state argued that these were proceeds
traceable to Gravano's criminal activities in New York and were used
to fund racketeering and drug distribution in Arizona.[87] Gravano
argued that the Arizona's seizure of the book royalties violated the
First Amendment.[88]
The Arizona Supreme Court determined that the forfeiture statutes
were content-neutral because they contained no reference to
expressive materials and are based on a causal connection between
racketeering and property.[89] The laws apply if the value of the
commercial contract is substantially as a result of racketeering and
does not depend on the content of the work, the court stated.[90] It
held that the Arizona statutes not only passed the O'Brien standard
of intermediate scrutiny required of content-neutral statutes, but
they also passed a strict scrutiny standard.[91] It held that the
forfeiture laws advanced the compelling government interests of
ensuring that victims are compensated and preventing criminals from
profiting from their crimes and were narrowly tailored to do
so.[92] The $420,000 in profits from Underboss were later
distributed to eight families whose loved ones were killed by Gravano
during his time with the Gambino crime family. [93]
Rolling v. Florida
In Florida, a general forfeiture statute, not that state's "Son of
Sam" law, prevented serial killer Danny Rolling and his "cyber wife"
Sondra London from making money in connection with a book of his art
as well as the sale of his autographs.[94] By his own admission,
Rolling killed five Gainesville, Fla., college students in
1990.[95] He pleaded guilty to five counts of first-degree murder in
1994, and was subsequently sentenced to death.[96]
Long before Rolling's gruesome killing spree, the state of Florida
was one of those that were quick to enact "Son of Sam" laws in 1977,
following New York's lead.[97] Florida's "Son of Sam" law allows the
state to impose a lien on proceeds from "any literary, cinematic, or
other account of the crime" for which a person was convicted.[98]
Over 20 years after Florida's "Son of Sam" law was enacted,
Florida's First District Court of Appeal ruled on Rolling's and
London's claim that the state's attempt to seize proceeds from a book
titled The Making of a Serial Killer and his autographs was
unconstitutional.[99] The appellate court chose not to address of
the law's unconstitutionality.[100] Instead, the court ruled that
proceeds from Rolling's art and writings were subject to the lien
under another portion of Florida law.[101] The 1994 Civil
Restitution Lien and Crime Victims' Remedy Act[102] provides a way
for the state and crime victims to recover damages via a lien on the
criminal's "real and personal property," which would conceivably
include proceeds from any work, including literary or artistic
expression.[103] Since the state had the ability to enforce the lien
under statutes other than the "Son of Sam" law, and these other
statutes were not constitutionally challenged by Rolling or London,
Florida's appellate court affirmed a circuit court's judgment for the
state.[104]
IV. Procedural Provisions of Anti-Profit Statutes
Regardless of whether particular states' "Son of Sam" laws target
specific mediums of expression or not, the procedure by which the
laws are administered is generally as follows: First, individuals or
businesses who contract with the defendant must turn over the
defendant's proceeds to the state. The proceeds are then placed in an
escrow account. The state must make efforts to notify victims,
through both direct contact and publication of legal notice in a
newspaper. Next, victims usually have five years to bring civil
actions to recover damage awards from the account. In addition to
victims, the public defender's office, the state and even the
criminal are permitted by law to receive distributions from the
account. This section examines how "Son of Sam" statutes call for
the law to be carried out.
A contract between a person or business and the defendant is
required for the "Son of Sam" law to be effective in 36 of the 39
states that have such laws.[105] For example, in Simon & Schuster,
the contract existed between publishing company Simon & Schuster and
organized crime figure Henry Hill. Additionally, 16 of these states
require that a copy of the contract or written notice be submitted to
the state.[106]
When the proceeds of such contracts are turned over to the state,
they are generally deposited in an escrow account.[107] A departure
from the escrow account scheme is found in Arizona, which describes a
"crime victim account"[108]; in Minnesota a "special account"[109];
North Dakota calls for a "constructive trust"[110]; an "offender's
profit fund" is utilized in Ohio[111]; and Rhode Island describes the
account as a "criminal royalties fund."[112] Utah is unique in that
its "Son of Sam" law does not seek forfeiture of proceeds from a
contract, but allows for a special condition of sentencing that
prohibits defendants from ever engaging in a contract related to
expressing themselves regarding their crimes.[113]
While compensating victims is a stated goal of "Son of Sam" laws,
victims do not simply receive a check in the mail if the funds are
turned over to the state. They must bring action in civil court
within a specified amount of time, usually in three to five
years. Thirty-five of states with "Son of Sam" laws require that the
victim file a civil action or apply to the state - Florida, Montana,
Ohio and Utah do not have such provisions.[114] In 13 states,
victims have five years from the establishment of the escrow account
to file a claim against the account.[115] Five states share a
similar statutory provision that allows victims three years from
discovering the proceeds to take action.[116] Other states vary in
their approach to how much time victims have to take advantage of the
"Son of Sam" statutes. In Connecticut, for example, the five-year
statute of limitations begins running on the date of the crime,
which could be problematic if a criminal was not apprehended within
five years of the crime.[117] Kansas allows victims only six months
after being notified to file actions against the criminal.[118]
Though the intent of "Son of Sam" laws is to compensate victims,
victims must compete for crime proceeds with other entities, such as
the public offender and the defendant, who are often statutorily
authorized to receive proceeds from expressive materials about
crime. In fact, only eight states name victims as the sole
beneficiaries of proceeds forfeited under "Son of Sam" laws.[119]
More than half of the states with current anti-profit statutes allow
the criminal to petition a court to use some of the funds to pay for
legal representation.[120] Two of these states _ Rhode Island and
Wisconsin _ even list public defender costs as a higher priority for
payment than victim compensation.[121] Other statutory provisions
which allow states to recoup costs they incur when a person is
convicted of a crime include allowing for costs of incarceration to
be distributed from the accounts.[122] In Montana, proceeds may
eventually end up in the state's general fund.[123]
Criminal defendants and their minor dependents are also potential
beneficiaries of funds forfeited under "Son of Sam" laws. Fifteen
states permit monies left in the account after the statute of
limitations has expired to be returned to defendants.[124] For
defendants with children, three states _ Florida, Minnesota and
Mississippi _ have provisions that allow for distributions from the
accounts to dependents.[125]
The procedural components of "Son of Sam" laws are often
overshadowed by the constitutional debate surrounding the laws, but
these aspects of the laws are valuable as subjects of commentary
themselves. In particular, the varying ways in which states
distribute forfeited funds can have a significant impact on the
ability of states to reach the goals (victim compensation and
prevention of criminal profiteering) of "Son of Sam" laws.
V. Summary
The findings presented in the previous sections show that "Son of
Sam" laws in the 50 states are very similar in how they dictate that
such anti-profit laws are carried out. In 36 of the 39 states with
active "Son of Sam" laws, there must be a contract in existence in
order for the law to be effective. Funds are then deposited in an
escrow account or other designated fund, making them available for
victims file claims against. And, while victim compensation is one
goal of "Son of Sam" laws, victims must often compete with other
potential recipients of the money, including public defenders or
court-appointed attorneys, the state itself, and dependents of criminals.
When the anti-profit statutes are analyzed according to how they
treat expressive materials, most states (28) still target the
specific mediums of expression and thoughts of the defendant as
outlined in the New York law struck down in Simon & Schuster. A
growing trend among states is to eliminate references to expression
in favor of laws that target proceeds derived from a "unique
knowledge" of a crime, as 11 states have done. Finally, Tennessee
extends the reach of its forfeiture statute to "all income." The
potential success of a law like Tennessee's has been illustrated in
cases involving two states - Arizona and Florida - who have broader
forfeiture statutes in addition to "Son of Sam" laws.
VI. CONCLUSION
A survey of "Son of Sam" laws across the country lends itself to two
major conclusions. First, although such laws have been touted as a
way to compensate crime victims and prevent criminals from profiting
from their crimes, an examination of the statutory provisions
regarding the administration of criminal anti-profit laws reveals
that neither goal is guaranteed. Most states allow for defendants to
use criminal profits for legal representation, which would most
likely go to the state public defender or a court-appointed
attorney. In fact, Wisconsin and Rhode Island prioritize public
defender costs before victim reparations. Another five states allow
the seized funds to be used to pay for incarcerating the
criminal. And Montana has a provision for unused funds to go in the
state's general fund. So, while the stated intent of these laws is
to compensate victims and prevent criminal profiteering, in practice
they can serve as a tool for states to defray the costs of giving a
defendant a fair trial and any subsequent incarceration. The goal of
preventing criminals from profiting from their indiscretions cannot
be obtained if, as in 16 states, there are funds still available
after the statute of limitations for victim action has
expired. These states simply return the money to the defendant. If
certain individuals' First Amendment rights are to be compromised by
"Son of Sam" laws such as New York's original statute, then it is
vital that the government's compelling interests have the opportunity
to be realized. In many states, supplementary procedural provisions
to "Son of Sam" laws thwart the intended goals of such laws.
A second major observation of this 50-state survey is that in light
of the case law presented in Part III, the 28 states who continue to
have laws that target expressive materials would be wise to amend
their laws. State case law since Simon & Schuster regarding these
types of laws has reiterated how vulnerable these statutes are to
constitutional challenges.
Eleven states have already steered clear of targeting works such as
books or movies and instead choose to focus on assets the defendant
received as a result of the crime, including those obtained through a
"unique knowledge" of the crime. While these types of laws have not
advanced in the courts to the point of First Amendment scrutiny, it
appears that they would fare much better in the courts than
expression-specific laws. As many authors have suggested, these laws
would likely be analyzed using intermediate scrutiny and are likely
to pass such a standard of review.
States who wish to revise their laws could take an even further step
away from expression-specific laws by adopting forfeiture statutes
that extend to all income or property, as Tennessee, Arizona and
Florida have done. These types of laws have been successful when
challenged in the courts and offer yet another option for the 28
states whose current laws are likely unconstitutional under Simon &
Schuster. These states with constitutionally vulnerable "Son of Sam"
laws should not wait for a legal challenge to revise their
laws. "Son of Sam" laws are rarely challenged, but when they are, it
is usually because and individual has committed a particularly
heinous or notorious crime. Rather than wait, and allow such
criminals to profit from their crimes, states should take proactive
measures to ensure that the legislative intent of anti-profit laws is
carried out.
[1] David Abrahamsen, Confessions of Son of Sam ix (Columbia
University Press 1985). David Berkowitz, also known as the ".44
caliber killer", was arrested Aug. 10, 1977. Berkowitz, who left
notes for police signed "Son of Sam", was found mentally incompetent
to stand trial for the six murders he committed, but in June 1978 he
was sentenced to several hundred years in prison for the murders.
[2] David Abrahamsen, Confessions of Son of Sam ix (Columbia
University Press 1985).
[3] See Ala. Code _ 41-9-80 (2004); Alaska Stat. _ 12.61.020 (2004);
Ariz. Rev. Stat. _ 13-4202 (2004); Ark. Code Ann. _ 16-90-308 (2004);
Colo. Rev. Stat. _ 24-4.1-201 (2004); Conn. Gen Stat. _ 54-218
(2003); Del. Code Ann. tit. 11, _ 9103 (2004); Fla. Stat. Ann. _
944.512 (2004); Ga. Code Ann. _ 17-14-31 (2004); Haw. Rev. Stat. _
351-81 to -88 (2004); Idaho Code _ 19-5301 (2004); Ind. Code Ann.
_ 5-2-6.3-1 to -7 (2004); Iowa Code _ 910.15 (2003); Kan. Stat. Ann.
_ 74-7319 (2003); Ky. Rev. Stat. Ann. _ 346.165 (2004); Me. Rev.
Stat. Ann., tit. 14, _ 752-E (2004); Md. Code Ann., Crim. Proc. _
11-621 to -632 (2004); Mich. Stat. Ann. _ 780.768 (2004); Minn. Stat.
_ 611A.68 (2004); Miss. Code Ann. _ 99-38-1 to -11 (2004); Mont.
Code Ann. _ 53-9-104 (2004); Neb. Rev. Stat. _ 81-1836 to -1839
(2004); N.J.Stat. _ 52:4B-62 to -70 (2004); N. M. Stat. Ann. _
31-22-22 (2004); N.Y. Exec. Law _ 632-a (2004); N.D. Cent. Code _
32-07.1-01 (2003); Ohio Rev. Code Ann. _ 2969.02 (2005); Okla.
Stat., tit. 22 _ 17 (2004); Or. Rev. Stat. _ 147.275 (2003); 42 Pa.
Cons. Stat. _ 8312 (2004); R.I. Gen. Laws _ 12-25.1-3 (2004); S.D.
Codified Laws _ 23A-28A-1 to -14 (2004); Tex. Crim. Proc. Code art. _
59.06 (2004); Utah Code Ann. _ 77-18.8.3 (2004); Va. Code Ann. _
19.2-368.19 to -22 (2004); Wash. Rev. Code _ 7.68.200 to -290
(2004); W. Va. Code _ 14-2B-1 to -11 (2004); Wis. Stat. _ 949.165
(2004); Wyo. Stat. Ann. _ 1-40-301 to -308 (2004).
[4] N.Y Exec. Law _ 632-a(1) (Mckinney 1982) reads: "Every person,
firm, corporation, partnership, association or other legal entity
contracting with any person or the representative or assignee of any
person, accused or convicted of a crime in this state, with respect
to the reenactment of such crime, by way of a movie, book, magazine
article, tape recording, phonograph record, radio or television
presentation, live entertainment of any kind, or from the expression
of such accused or convicted person's thoughts, feelings, opinions or
emotions regarding such crime, shall submit a copy of such contract
to the board and pay over to the board any moneys which would
otherwise, by terms of such contract, be owing to the person so
accused or convicted or his representatives."
[5] Simon & Schuster, Inc. v. New York State Crime Victims Board,
502 U.S. 105, 111 (1991).
[6] Id. at 114, 115.
[7] Id. at 112.
[8] Id.
[9] Id. at 115.
[10] Id. at 117.
[11] Id.
[12] Id. at 123. See also Leathers v. Medlock, 499 U.S. 439
(1991) and Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987).
[13] Id. at 123. "We conclude simply that in the Son of Sam law,
New York has singled out speech on a particular subject for a
financial burden it places on no other speech and no other
income. The State's interest in compensating victims from the fruits
of crime is a compelling one, but the Son of Sam law is not narrowly
tailored to advance that objective."
[14] Id. at 121.
[15] Id. at 110.
[16] Id. at 121.
[17] Id. at 116.
[18] Id. at 118-119.
[19] See Karen M. Ecker and Margot J. O'Brien, Note, Simon &
Schuster, Inc. v. Fuschetti: Can New York's Son of Sam Law Survive
First Amendment Challenge?, 66 Notre Dame L. Rev. 1075 (1991); Lisa
Ann Morelli, Simon & Schuster, Inc. v. Members of the New York State
Crime Victims Board: How the Characterization of a Speech Regulation
Can Effectively Destroy a Legitimate Law, 42 Cath. U.L. Rev. 651
(1993); Gilbert O'Keefe Greenman, Son of Simon & Schuster: A "True
Crime" Story of Motive, Opportunity and the First Amendment, 18
Hawaii L. Rev. 201 (1996); Orly Nosrati, Note and Comment, Son of Sam
Laws: Killing Free Speech or Promoting Killer Profits?, 20 Whittier
L. Rev. 949 (1999); Sean J. Kealy, A Proposal for a New Massachusetts
Notoriety-for-Profit Law: The Grandson of Sam, 22 W. New Eng. L. Rev.
1 (2000); Kathleen Howe, Note and Comment, Is Free Speech Too High a
Price to Pay for Crime? Overcoming the Constitutional
Inconsistencies in Son of Sam Laws, 24 Loy. L.A. Ent. L.J. 341 (2004).
[20] United States v. O'Brien, 391 U.S. 367 (1968). See also John
H. Garvey & Frederick Schauer, THe First Amendment: A Reader, 240
(2nd Ed. 1996).
[21] Karen M. Ecker and Margot J. O'Brien, Note, Simon & Schuster,
Inc. v. Fuschetti: Can New York's Son of Sam Law Survive First
Amendment Challenge?, 66 Notre Dame L. Rev. 1075 (1991). See also
Lisa Ann Morelli, Simon & Schuster, Inc. v. Members of the New York
State Crime Victims Board: How the Characterization of a Speech
Regulation Can Effectively Destroy a Legitimate Law, 42 Cath. U.L.
Rev. 651 (1993).
[22] Simon & Schuster v. Members of New York State Crime Victims
Board, 724 F. Supp. 170 (S.D.N.Y. 1989).
[23] Karen M. Ecker and Margot J. O'Brien, Note, Simon & Schuster,
Inc. v. Fuschetti: Can New York's Son of Sam Law Survive First
Amendment Challenge?, 66 Notre Dame L. Rev. 1075, 1100 (1991).
[24] See Sean J. Kealy, A Proposal for a New Massachusetts
Notoriety-for-Profit Law: The Grandson of Sam, 22 W. New Eng. L. Rev.
1 (2000); Gilbert O'Keefe Greenman, Son of Simon & Schuster: A "True
Crime" Story of Motive, Opportunity and the First Amendment, 18
Hawaii L. Rev. 201 (1996); Kathleen Howe, Note and Comment, Is Free
Speech Too High a Price to Pay for Crime? Overcoming the
Constitutional Inconsistencies in Son of Sam Laws, 24 Loy. L.A. Ent.
L.J. 341 (2004).
[25] Debra Shields, The Constitutionality of Current Crime
Victimization Statutes: A Survey, 4 Fordham Intell. Prop. Media &
Ent. L.J. 929 (1994).
[26] Id. at 933.
[27] Id. at 929.
[28] There are seven states that will not be discussed because they
do not have active "Son of Sam" statutes. They are Massachusetts,
Missouri, Nevada, New Hampshire, North Carolina, South Carolina and Vermont.
[29] The states target specific mediums of expression are Alabama,
Alaska, Arizona, Arkansas, Connecticut, Delaware, Florida, Georgia,
Hawaii, Idaho, Indiana, Kansas, Kentucky, Maryland, Michigan,
Minnesota, Mississippi, Montana, Nebraska, New Mexico, Ohio,
Oklahoma, South Dakota, Texas, Utah, Virginia, Washington and Wisconsin.
[30] This wording was taken from the New York statute struck down in
Simon & Schuster; N.Y Exec. Law _ 632-a(1) (McKinney 1982).
[31] Ariz. Rev. Stat. _ 13-4202 (2004).
[32] Mont. Code Ann. _ 53-9-104 (2004).
[33] Va. Code Ann. _ 19.2-368.19 to -22 (2004).
[34] Simon & Schuster v. New York State Crime Victims Board, 502
U.S. 105, 121 (1991). "As a means of ensuring that victims are
compensated from the proceeds of crime, the Son of Sam law is
significantly over inclusive…the statute applies to works on any
[emphasis in original] subject, provided that they express the
author's thoughts or recollections about his crime, however
tangentially or incidentally."
[35] Del. Code Ann. tit. 11, _ 9103 (2004); Kan. Stat. Ann. _
74-7319 (2003); Okla. Stat., tit. 22 _ 17 (2004); Va. Code Ann. _
19.2-368.19 to -22 (2004); Wis. Stat. _ 949.165 (2004).
[36] Del. Code Ann. tit. 11, _ 9103 (2004).
[37] See Bouchard v. Price (1997); Keenan v. Sinatra, 27 Cal. 4th
413 (2002); Seres v. Lerner, 102 P.3d 91 (2004). See also Curran v.
Price, 334 Md. 149 (1994).
[38] Keenan v. Sinatra, 27 Cal. 4th 413, 418 (2002).
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] See Cal. Civ. Code _ 2225 (2002). "All proceeds from the
preparation for the purpose of sale, the sale of the rights to, or
the sale of materials that include or are based on the story of a
felony for which a convicted felon was convicted, shall be subject to
an involuntary trust for the benefit of the beneficiaries set forth
in this section." Materials are defined as "books, magazine or
newspaper articles, movies, films, videotapes, sound recordings,
interviews or appearances on television and radio stations, and live
presentations of any kind."
[44] Cal. Civ. Code _ 2225 (2002).
[45] Keenan v. Sinatra, 27 Cal. 4th 413, 433 (2002).
[46] Id. at 421.
[47] Id. at 433.
[48] Id.
[49] Id. at 434.
[50] Id. at 435.
[51] "'Son of Sam' statutes: federal and state summary." The First
Amendment Center, available at <http://www.firstamendmentcenter.org>
[52] Seres v. Lerner, 102 P.3d 91 (2004).
[53] Id. at 1.
[54] Nev. Rev. Stat.§ 217.007 (2004).
[55] Seres v. Lerner, 102 P.3d 91, 17 (2004).
[56] Id. at 18-19.
[57] Id. at 22.
[58] Id.
[59] Id. at 26.
[60] Id.
[61] The states that seek to recover income obtained as a result of
committing a crime are Colorado, Iowa, Maine, New Jersey, New York,
North Dakota, Oregon, Pennsylvania, Rhode Island, West Virginia and
Wyoming. See Colo. Rev. Stat. _ 24-4.1-201 (2004); Iowa Code _
910.15 (2003); Me. Rev. Stat. Ann., tit. 14, _ 752-E (2004);
N.J.Stat. _ 52:4B-62 to -70 (2004); N.Y. Exec. Law _ 632-a (2004);
N.D. Cent. Code _ 32-07.1-01 (2003); Or. Rev. Stat. _ 147.275
(2003); 42 Pa. Cons. Stat. _ 8312 (2004); R.I. Gen. Laws _ 12-25.1-3
(2004); W. Va. Code _ 14-2B-1 to -11 (2004); Wyo. Stat. Ann. _
1-40-301 to -308 (2004).
[62] The states that use the term "unique knowledge" are Colorado,
Maine, New Jersey, New York, North Dakota, Pennsylvania, West
Virginia and Wyoming. See Colo. Rev. Stat. _ 24-4.1-201 (2004); Me.
Rev. Stat. Ann., tit. 14, _ 752-E (2004); N.J.Stat. _ 52:4B-62 to -70
(2004); N.Y. Exec. Law _ 632-a (2004); N.D. Cent. Code _ 32-07.1-01
(2003); 42 Pa. Cons. Stat. _ 8312 (2004); W. Va. Code _ 14-2B-1 to
-11 (2004); Wyo. Stat. Ann. _ 1-40-301 to -308 (2004).
[63] Iowa Code _ 910.15 (2003).
[64] Or. Rev. Stat. _ 147.275 (2003).
[65] R.I. Gen. Laws _ 12-25.1-3 (2004).
[66] See Debra Shields, The Constitutionality of Current Crime
Victimization Statutes: A Survey, 4 Fordham Intell. Prop. Media &
Ent. L.J. 929, 933 (1994). There were only four such statutes in 1994.
[67] Sandusky v. McCummings, 164 Misc. 2d 700 (1995).
[68] Id. at 701. McCummings later pleaded guilty to the felony
charge of attempted robbery and was incarcerated.
[69] Id.
[70] N.Y. Exec. Law _ 632-a (2004).
[71] Sandusky v. McCummings, 164 Misc. 2d 700, 702 (1995).
[72] Id. at 706.
[73] Id. at 705.
[74] Id. at 706.
[75] New York State Crime Victims Board v. T.J.M. Productions, 265
A.D.2d 38, 47 (2000).
[76] Id. at 43.
[77] Id. See also 18 U.S.C.S. _ 1962(c).
[78] New York State Crime Victims Board v. T.J.M. Productions, 265
A.D.2d 38, 43 (2000).
[79] Id. at 44.
[80] Id.
[81] Id. at 47.
[82] Id.
[83] Tenn. Code Ann. _ 29-13-402 to 410 (2004).
[84] Arizona v. Gravano, 204 Ariz. 106, 108 (2000).
[85] Id. at 109.
[86] Id. at 109 (2000). See also Ariz. Rev. Stat. _ 13-2301 to
-2318; Ariz. Rev. Stat. __ 13-4301 to -4316.
[87] Arizona v. Gravano, 204 Ariz. 106, 109-111 (2000).
[88] Id. at 109.
[89] Id. at 113.
[90] Id.
[91] Id. at 114.
[92] Id. at 115. "In sum, the application of Arizona's forfeiture
laws is limited to preventing racketeers from benefiting from their
crimes, and to compensating victims for their losses and the State
for costs incurred in the prosecution of racketeers. We conclude
that Arizona's forfeiture statutes not only survive intermediate
scrutiny, but also are narrowly tailored to further the compelling
interests of the State, and therefore satisfy a strict scrutiny
standard as well. We therefore hold that Arizona's forfeiture
statutes, as applied to Gravano's royalties from Underboss, do not
violate either federal or state freedom of speech provisions."
[93] Greg B. Smith, Kin of Gravano's Victims Get 420G in Payback,
Daily News, July 22, 2004, at 3.
[94] Florida v. Rolling, et al., No. 93-265-CA, (Fla. 8th Cir.,
Dec. 31, 1997).
[95] Robinson, Bryan, "Florida v. London and Rolling," available
at <http://www.courttv.com/archive/verdicts/rolling.htm> (last
visited Oct. 4, 2004).
[96] Id.
[97] Fla. Stat. § 944.512 (2004).
[98] Fla. Stat. § 944.512 (2004). Even before his conviction, the
state of Florida attempted to enforce Fla. Stat. Ch. 944.512 against
Rolling. In 1993, a circuit court judge granted the state a
temporary injunction against the disbursement of any proceeds from
Rolling's recounting of his crimes, pursuant to the statute. On
appeal, the First District Court of Appeal in Florida ruled that
since the statute confined the law to those convicted of a crime, the
injunction didn't apply to Rolling, who had yet to be convicted of
the crimes. See Rolling v. Florida, 630 So. 2d. 635 (Fla. Dist. Ct.
App. 1994).
[99] Rolling and London v. Florida, 741 So. 2d 627 (Fla. Dist. Ct.
App. 1999).
[100] Id. at 629.
[101] Id.
[102] Robinson, Bryan, "Florida v. London and Rolling", available
at <http://www.courttv.com/archive/verdicts/rolling.htm> (last
visited Oct. 4, 2004).
[103] Fla. Stat. _ 960.29 (2004).
[104] Rolling and London v. Florida, 741 So. 2d 627 (Fla. Dist.
Ct. App. 1999). See also Florida v. Rolling (Fla. 8th Cir., Dec. 31, 1997).
[105] The state "Son of Sam" laws that require a contract for
enforcement are: Alabama, Alaska, Arizona, Arkansas, Colorado,
Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Kansas,
Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Montana,
Nebraska, New Jersey, New Mexico, New York, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah,
Virginia, Washington, West Virginia, Wisconsin and
Wyoming. See Ala. Code _ 41-9-80 (2004); Alaska Stat. _ 12.61.020
(2004); Ariz. Rev. Stat. _ 13-4202 (2004); Ark. Code Ann. _ 16-90-308
(2004); Colo. Rev. Stat. _ 24-4.1-201 (2004); Conn. Gen Stat. _
54-218 (2003); Del. Code Ann. tit. 11, _ 9103 (2004); Ga. Code Ann. _
17-14-31 (2004); Haw. Rev. Stat. _ 351-81 to -88 (2004); Idaho Code
_ 19-5301 (2004); Ind. Code Ann. _ 5-2-6.3-1 to -7 (2004); Kan.
Stat. Ann. _ 74-7319 (2003); Ky. Rev. Stat. Ann. _ 346.165 (2004);
Me. Rev. Stat. Ann., tit. 14, _ 752-E (2004); Md. Code Ann., Crim.
Proc. _ 11-621 to -632 (2004); Mich. Stat. Ann. _ 780.768 (2004);
Minn. Stat. _ 611A.68 (2004); Miss. Code Ann. _ 99-38-1 to -11
(2004); Mont. Code Ann. _ 53-9-104 (2004); Neb. Rev. Stat. _ 81-1836
to -1839 (2004); N.J.Stat. _ 52:4B-62 to -70 (2004); N. M. Stat. Ann.
_ 31-22-22 (2004); N.Y. Exec. Law _ 632-a (2004); N.D. Cent. Code _
32-07.1-01 (2003); Ohio Rev. Code Ann. _ 2969.02 (2005); Okla.
Stat., tit. 22 _ 17 (2004); Or. Rev. Stat. _ 147.275 (2003); 42 Pa.
Cons. Stat. _ 8312 (2004); R.I. Gen. Laws _ 12-25.1-3 (2004); S.D.
Codified Laws _ 23A-28A-1 to -14 (2004); Utah Code Ann. _ 77-18.8.3
(2004); Va. Code Ann. _ 19.2-368.19 to -22 (2004); Wash. Rev. Code
_ 7.68.200 to -290 (2004); W. Va. Code _ 14-2B-1 to -11 (2004); Wis.
Stat. _ 949.165 (2004); Wyo. Stat. Ann. _ 1-40-301 to -308 (2004).
[106] The states that require a copy of the contract or written
notice to be submitted to the board are Colorado, Delaware, Georgia,
Hawaii, Indiana, Maryland, Mississippi, New Jersey, New Mexico, New
York, Pennsylvania, Rhode Island, South Dakota, Washington, West
Virginia and Wisconsin.
[107] Escrow accounts are statutorily required in Alabama, Arkansas,
Colorado, Connecticut, Delaware, Hawaii, Idaho, Indiana, Iowa,
Maryland, Michigan, Minnesota, Mississippi, Montana, New Mexico,
Oklahoma, Oregon, South Dakota, Tennessee, Texas, Virginia,
Washington, West Virginia, Wisconsin and Wyoming.
[108] Ariz. Rev. Stat. _ 13-4202 (2004).
[109] Minn. Stat. _ 611A.68 (2004).
[110] N.D. Cent. Code _ 32-07.1-01 (2003).
[111] Ohio Rev. Code Ann. _ 2969.92 (2005).
[112] R.I. Gen. Laws _ 12-25.1-3 (2004).
[113] Utah Code Ann. _ 77-18.8.3 (2004).
[114] Fla. Stat. Ann. _ 944.512 (2004); Mont. Code Ann. _ 53-9-104
(2004); Ohio Rev. Code Ann. _ 2969.92 (2005); Utah Code Ann. _ 77-18.8.3.
[115] The states that allow for victim actions within five years of
the establishment of an escrow account are Arizona, Colorado,
Delaware, Idaho, Kentucky, Maryland, Michigan, Minnesota, New Mexico,
Oregon, Texas, Washington and Wyoming.
[116] The state allow for victim actions with three years of
discovery of profits are Maine, Nebraska, New York, Pennsylvania and
West Virginia.
[117] Conn. Gen Stat. _ 54-218 (2003).
[118] Kan. Stat. Ann. _ 74-7319 (2003).
[119] The states that name victims as the sole beneficiaries of
forfeited proceeds are Alabama, Maine, New Jersey, New York, North
Dakota, Pennsylvania, Texas and Wyoming.
[120] The 22 states that allow proceeds to be used for legal
representation of defendant are Arizona, Arkansas, Connecticut,
Delaware, Georgia, Hawaii, Idaho, Indiana, Iowa, Maryland, Minnesota,
Mississippi, Nebraska, New Mexico, Oklahoma, Rhode Island, South
Dakota, Tennessee, Virginia, Washington, West Virginia and Wisconsin.
[121] R.I. Gen. Laws _ 12-25.1-3 (2004); Wis. Stat. _ 949.165 (2003).
[122] The states that provide for costs of incarceration to be
withdrawn from anti-profit funds are Florida, Indiana, Michigan,
Oklahoma, and South Dakota.
[123] Mont. Code Ann. _ 53-9-104 (2004).
[124] The states that return money to criminals if no victim action
is taken are Colorado, Delaware, Georgia, Hawaii, Idaho, Kentucky,
Maryland, Nebraska, New Mexico, Oregon, South Dakota, Washington,
West Virginia and Wisconsin.
[125] Fla. Stat. Ann. _ 944.512 (2004); Minn. Stat. _ 611A.68
(2004); Miss. Code Ann. _ 99-38-1 to -11 (2004).
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